State v. Swales

Moylan, J., delivered the opinion of the Court. Both sets of appellees here were the beneficiaries of a common pre-trial ruling denying the adequacy of an application for a search and seizure warrant. Both sets of appellees were represented by the same counsel at the ⁷¹ hearing below and on appeal. The State of Maryland is the appellant, urging a common ground on both appeals.

Because of the unity of the issues, both appeals will be considered together in this opinion. For approximately a four-month period, encompassing the months of October, November and December, 1968, and January, 1969, three members of the Vice-Narcotic Unit of the Maryland State Police conducted a discreet surveillance upon a suspected lottery operation in a three-county area in southern Maryland. Those observations were recited in a twenty-two-page affidavit filed in support of an application for search and seizure warrants presented to Judge James C. Mitchell, Associate Judge of the Seventh Judicial Circuit, on January 22, 1970. Deciding that probable cause for the issuance of the warrants had been shown, Judge Mitchell issued twenty-six separate search and seizure warrants.

Various units of the Maryland State Police executed all of those warrants on January 22,1970. Seized from the home of the appellees Joseph Chester Swales and Elizabeth Regina Swales, his wife, was various lottery paraphernalia, along with $28,102.28 in United States currency. A three-count indictment was returned by the Grand Jury for St. Mary’s County on March 10, 1970, charging Mr. and Mrs. Swales with (1) possession of lottery paraphernalia, (2) keeping a house for the purpose of selling lottery, and (3) permitting a house to be used as a place for selling lottery. Seized from the home of the appellees Edward Lincoln Welch and Bertie Bowman was various lottery paraphernalia, along with $8,348.75 in United States currency.

A three-count indictment was returned by the Grand Jury for St. Mary’s County on March 10, 1970, charging these appellees with (1) possession of lottery paraphernalia, (2) keeping a house for the purpose of selling lottery, and (3) permitting a house to be used as a place for selling lottery. On June 16, 1970, a motion was filed by the appellee Elizabeth Regina Swales to dismiss the indictment ⁷² against her on the ground that probable cause had not existed to authorize either her arrest or the search of her home. A hearing on this motion to dismiss was held on June 19, 1970. No transcript was made of the hearing.

The motion to dismiss was denied. On August 3, 1970, a motion was filed by the appellee Elizabeth Regina Swales requesting a reargument on her previously denied motion to dismiss. That motion recited as reason therefor (1) that “There has been newly-discovered evidence, not available to the attorneys for the defendants, which is now available to the said attorneys and (2) that “A more recent case decided by the Special Court of Appeals of Maryland has been published since the court’s decision in the above-entitled case.” The motion to permit reargument was granted. A thorough search of the record reveals neither any subsequent pleading or memorandum of law reciting newly-discovered evidence or citing a recent decision of this Court nor the transcript of any hearing at which such evidence was recited or case cited nor a record in the docket entries that any such hearing was ever held.

On August 4, 1970, a motion to dismiss the indictment against him was filed by the appellee Joseph Chester Swales on the ground that probable cause had not existed to authorize his arrest or the search of his home. On June 19, 1970, a motion was filed by the appellees Welch and Bowman to dismiss the indictment against them on the ground that probable cause had not been shown to authorize the search of their home. On September 8, 1970, separate orders were filed by Judge Phillip H. Dorsey, Jr., in the Circuit Court for St. Mary’s County, granting the various motions to dismiss and holding in each order that probable cause did not exist to authorize the search of the premises involved or to authorize the arrest of the various appellees. Each of the orders recited the bare conclusion “that there was no showing in said warrant and application of probable cause in that the elements of probable cause were not shown by said warrant and application to exist.” The ⁷³ State of Maryland has appealed from each of these orders.

The single issue before us is whether there was a substantial basis for Judge Mitchell to conclude that gambling activities were going on in the two houses in question and that evidence of such activity could probably be found in those houses. We hold that there was. Animating our decision is the philosophy permeating the opinions of the Supreme Court on the spirit in which applications for warrants must be reviewed. As that Court said in United States v. Ventresca, 880 U. S. 102 , at 108: “These decisions reflect the recognition that the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract.

If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” In Aguilar v. Texas, 378 U. S. 108 , the Supreme Court pointed out that the preference for warrants is so marked, that less persuasive evidence will justify the issuance of a warrant than would justify a warrantless search or warrantless arrest.

As the Court there said, at 111: “Thus, when a search is based upon a magistrate’s, rather than a police officer’s, determi ⁷⁴ nation of probable cause, the reviewing courts will accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,’ ibid,, and will sustain the judicial determination so long as ‘there was substantial basis for [the magistrate] to conclude that narcotics were probably present. . . This preference was reiterated in Ventresca , at 109: “However, where these circumstances are detailed, where reason for crediting the source of the information is given, and, when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a common-sense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, 362 U. S. at 270, 4 L.ed.2d at 707, 78 A.L.R.2d 233 .” See also Henderson v. State, 243 Md. 342 ; Tucker v. State, 244 Md. 488 ; Scott v. State, 4 Md. App. 482; Hall v. State, 5 Md. App. 394; Johnson v. State, 8 Md. App. 187 .

Basic to any decision on the existence vel non of probable cause are the venerable principles reaffirmed in Ventresca , at 107-108: (1) “The term ‘probable cause’ . . . means less than evidence which would justify condemnation,” Locke v. United States, 7 Cranch 339, 348 , 3 L. Ed. 364, 367 ; (2) “ ‘Probable cause’ may rest upon evidence which is not legally competent in a crimi ⁷⁵ nal trial.” Draper v. United States, 358 U. S. 307, 311 ; and (3) “There is a large difference between the two things to be proved [guilt and probable cause], as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.” Brinegar v. United States, 338 U. S. 160, 173 . The probable cause in this case, however, does not need the benefit of the preference normally extended to warrant applications over warrantless searches to be amply demonstrated. The investigation here was a model of what the patient and painstaking investigation of a gambling operation should be. The warrant application here was a model for others to emulate.

The sophisticated surveillance here employed revealed a classic “pick-up man” phase of a large-scale lottery operation. A lottery syndicate is a multi-tiered organization. The number of tiers may vary according to the size of the business, the number of its employees and the breadth of the betting clientele it serves. Be the organization large or small, however, the base of the pyramid is always the better.

He is the customer who, at sometime between the afternoon of the day before and approximately noon of the day in question, gets in his wager (typically, 25 cents to one dollar) on which of one thousand possible three-digit combinations, from 000 to 999, will result from certain additions of the pari-mutuel winning totals from three pre-designated races at a pre-designated racetrack. The functionary who receives this wager is the “writer”. He may roam the street, making his morning rounds. (This would give rise to the typical observation of currency and white slips of paper changing hands on a street corner.) He may operate from his home or from the home of another.

(This would give rise to the typical observation of unusually-heavy pedestrian traffic going ⁷⁶ into an apparently private residence for visits of brief duration without obvious legitimate cause.) He may operate from a telephone. He may operate from a bar, a restaurant, a poolroom, a barber shop — either as the ever-present customer or hanger-on or as the bartender, waitress or barber. He may operate as just another employee in a large factory or business office but for his extra-curricular service of collecting the daily wagers from his fellow employees. A few years ago, the “writer” would accept money from a better and fill out a conventional lottery “ticket” —in duplicate.

One copy would go to the better and one would be retained by the “writer.” In traditionally keeping one step ahead of not-always-flexible law enforcement and not-always-perceptive judicial interpretation, the conventional lottery “ticket” was several decades ago abandoned for more non-conventional methods of recordation. A better may now simply scribble a three-digit number on any scrap of paper and pass it to his “writer” with the wagered currency. Conversely, the “writer” may be the one to make the notation — again on anything convenient. In some more wary situations, no notation will be made, with the “writer” remembering the number long enough to get to the nearest telephone.

Even the wager may be on credit, with no tell-tale exchange of currency. Typically, however, the “writer” will collect his daily “action” — the wagered currency and the records of the “numbers” bet upon and the amounts wagered on those “numbers” — in ham-sandwiched-sized, two-penny brown paper bags. But however contained, his “action” by early afternoon, must — directly or indirectly — reach the hands of a “pick-up man.” Since most of the reported decisions deal with problems arising out of the convictions of “writers,” those decisions offer little precedential guidance in pin-pointing the tell-tale behavioral characteristics of the higher-echelon functionaries in the lottery organization — those who are spared compromising contact with the better and ⁷⁷ who are, therefore, vulnerable only to more subtle and patient observation and to more knowledgeable magisterial judgment. Within the multi-tiered structure, there are frequently variations on the dominant theme.

One man may play several roles. In a very small organization, a “writer” may take his “action” directly to an “office” or to the “backer.” Conversely, the small “backer” may be serving, during lean years at least, as his own “pick-up man.” In the average-sized lottery operation, however, a middle-echelon “pick-up man” will gather the accumulated “action” from a number of “writers” and, in turn, convey the collected “action” to the “office.” In an even larger lottery operation, a lesser or greater number of “writers” may turn in their “action” at pre-arranged locations— “drops.” The “pick-up man” will then make the rounds of the “drops.” A large “writer” may be able to leapfrog the chain of command and go directly to the “office.” Some functionaries may combine the roles of “pick-up man” and “writer.” Even a “backer” may occasionally “write” for a large, or otherwise personally familiar, better. Whatever number of echelons are involved, however, the “action” must be “picked up” and conveyed, by hand or by telephone, to an “office” or “turn-in station” before the post time of the first race (generally the fourth, or fifth race at the designated track) which has been selected to yield the first digit of the day’s three-digit “number.” The “backer” of a lottery operation may be present at the “office” during the busy afternoon hours when the races are being run and when the day’s profits and losses are being tabulated. He, more frequently, will isolate himself from the “office” with its bustle of activity and its mass of incriminating evidence.

He will likely station himself at some non-incriminating command post, from which he can be in regular telephonic contact with the “office” in order to receive periodic reports as the tabulations are completed. A very large “backer” may have several “offices” — each with its own “office man ⁷⁸ ager” but always in regular telephone communication with the “backer.” Here in the “office”, the adding machines tally the “action.” They soon ascertain whether there has been dangerously heavy betting on any particular numbers. If there has been, the “backer” will take insurance against heavy losses — “big hits” — by himself betting on those numbers with a “lay-off man” or with some other lottery organization which is willing to take the “lay-off action.” A “lay-off man” sits at the very top of the underworld pyramid where, from his position of isolation and security, he serves simply as a high-level lottery “writer” for the lottery “backers” themselves, who need daily insurance against bankrupting “hits” which their own financial resources could not survive. He may also serve as chairman of the Board of Directors of the area’s crime lords.

From the known nature of the lottery business, it is clear that one phase of the operation progresses into the next with the ticking of the clock. The “writers” are finishing their daily chores of the morning or of the night before as the “pick-up men” begin their phase of the day’s activity. Similarly, the “pick-up” phase is concluded by early afternoon as the “offices” then go to work through the hours of the mid and late afternoon. Equally clear is the fact that only a “writer” generally has contact with betters; that a “pick-up man” is highly mobile, is tied to a rigid timetable and has brief, late morning and early afternoon contact with a series of “writers” or their “drops”; an “office manager” is largely stationary, generally has contact only with the “pick-up men” as they turn in their “action,” and remains at the “office” until the last race has been run; and that a “backer” is characterized by greater freedom of movement but by regular telephonic communication with his “office” or “offices.” Measured against this standard, it is clear that there was probable cause for Judge Mitchell to believe — that is, a substantial basis for him to conclude — that the ap ⁷⁹ pellee Joseph Chester Swales was a “pick-up man” and that the two residences involved on this appeal were “drops” along the route of “Pick-up Man Joseph Chester Swales.” Trooper Joseph L. Lawrence began the undercover phase of the present investigation on October 2, 1969, by posing as a customer at Wimbush’s Inn, a tavern located on State Route 231 at Bucktown in Charles County.

He asked the proprietress, Madeline Wimbush, if she would take his bet in the amount of one dollar on the lottery number 712. This conversation took place at approximately 8 p.m. Madeline Wimbush explained to Trooper Lawrence that it was too late to play a number for that day but that she would accept the bet for the following day. She wrote down the number 712 on a pad and asked Lawrence to place his initials beside the number.

She then placed the paper with the lottery number in an area near the cash register. Trooper Lawrence returned to Wimbush’s Inn two months later, on December 2, 1969, at approximately 11:15 a.m. He again discussed the possibility of playing a number with Madeline Wimbush. Mrs. Wimbush explained that he could still get a number in for that day.

Trooper Lawrence then played number 712 for one dollar. Mrs. Wimbush accepted the dollar, wrote down the number, and placed the piece of paper in the same area near the cash register. On December 29, 1969, at approximately 11:30 a.m., Trooper Lawrence entered Wimbush’s Inn and again engaged Madeline Wimbush in conversation concerning the purchase of a lottery ticket. Mrs. Wimbush explained that the lottery operation had been suspended for the Christmas holidays and that there would be no more lottery until January 5,1970.

On January 5, 1970, Trooper Lawrence came to Wimbush’s Inn at 12:15 p.m. and attempted to play number 712 with Madeline Wimbush for one dollar. Mrs. Wimbush explained that it was then too late to get the num ⁸⁰ ber in- for that day but she accepted the wager for the following day, January 6,1970. On January 10, 1970, Trooper Lawrence again placed a one dollar bet with Madeline Wimbush at Wimbush’s Inn at 11:00 a.m. The foregoing observations, recited in the affidavit offered in support of the application for the warrants, made it clear beyond any peradventure of a doubt that Madeline Wimbush was a lottery “writer,” accepting bets at her place of business.

Rather than pounce prematurely on a low-level functionary, the State Police, in their wisdom, chose to follow wherever the trail might lead into the labyrinthine interior of the clandestine operation. On the second day of observation, December 2, 1969, the trail led directly to the appellant Joseph Chester Swales. On that day, shortly after placing his one dollar bet with Madeline Wimbush, Trooper Lawrence observed one Charles Eugene Harvey enter Wimbush’s Inn at 11:30 a.m. At 12:00 noon, Harvey asked Madeline Wimbush if she knew why Chester was late.

Madeline Wimbush stated, “No.” At approximately 12:15 p.m. the appellant Joseph Chester Swales drove up in a 1970 Chevrolet, bearing Maryland license JF 8902, which turned out to be registered to him. Harvey immediately left Wimbush’s Inn and approached Swales on the parking lot. Harvey was observed to be acting in a